Citation Nr: 0619741
Decision Date: 07/07/06 Archive Date: 07/13/06
DOCKET NO. 03-30 978 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to compensation under the provisions of
38 U.S.C.A. § 1151 (West 2002 & Supp. 2005) for intestinal
ischemia, status post small bowel resection, claimed to have
resulted from treatment at a Department of Veterans Affairs
medical center (VAMC) in Gainesville, Florida, in 1996.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The veteran had active military service from December 1954 to
November 1956.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the VA Regional Office
(RO) in Atlanta, Georgia.
It is noted that, during the course of this appeal, the
veteran's wife was recognized by the VA as a Spouse-Payee.
She has been involved with other claims but has not been
active in this appeal. Matters concerning this appeal have
been sent to the veteran as the appellant. Accordingly, at
this stage in the appeal, the Board has listed the veteran as
the appellant on the title page. If the spouse takes a more
active part of the appeal while the course is in remand
status, care should be taken to keep her informed.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran filed a compensation claim under the provisions
of 38 U.S.C.A. § 1151 for intestinal ischemia, status post
bowel resection, claimed as caused by VA treatment. The
treatment at issue in this case was furnished in October 1996
when the veteran underwent coronary artery bypass surgery.
In his December 2000 initial claim, the veteran indicated
that he experienced residuals of a staph infection incurred
at the VAMC in Gainesville and required additional surgeries
due to a surgical error when a staple gun was discharged into
his intestines and caused intestinal ischemia and intestinal
gangrene. However, in his October 2003 substantive appeal,
the veteran maintained that plaque dislodged during his
bypass surgery, subsequently lodged in the small bowel, and
caused infection. He said ischemia was defined as anemia due
to mechanical obstruction (mainly arterial narrowing) of the
blood supply. The veteran stated that his wife was told that
his bowel obstruction surgery was due to plaque obstructing
the bowel. He said he required constant medical treatment
for the residual infection.
The record reflects that on October 1, 1996, the veteran
underwent coronary artery bypass surgery and aneurysmorrhaphy
(although the VA hospital discharge summary states that a
coronary artery bypass graft was performed on September 30,
1996). He developed abdominal distention, clinical
deterioration and an elevated white cell count, with evidence
of pneumobilia, and an ischemic small bowel with pneumatosis
and intestinalis. On October 8, 1996, the veteran underwent
an exploratory laporotomy, small bowel resection, and
creation of a jejunostomy and mucous fistula. According to a
pathology report of the small bowel excision, the diagnosis
was changes consistent with ischemic enteritis, with fibrin
thrombi in multiple submuscosal venules.
On January 7, 1997, the veteran underwent an ileostomy
takedown. A January 24, 1997 VA hospital record indicates
that the veteran was admitted with diagnoses of coronary
artery disease status post coronary artery bypass graft
complicated by bowel ischemia and infarction.
According to a July 2000 private medical record, the veteran
was hospitalized for treatment of a urinary tract infection
and dehydration. It was noted that his past medical history
was complicated by an old stroke, bypass surgery, and then
abdominal surgery for gangrene. It was noted that his mental
status declined thereafter, that was attributed to dementia.
An August 2000 VA outpatient record reflects the veteran's
earlier hospitalization for urosepsis and that results of
urine analysis showed evidence of persistent infection.
The veteran is currently totally disabled due to organic
mental syndrome with dementia and depression, coronary artery
disease, and chronic renal failure, and resides in a nursing
home.
In essence, the veteran asserts that as a result of the
October 1996 VA medical treatment, he sustained additional
disability claimed as intestinal ischemia, status bowel
resection, and/or staph infection, that was the result of
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on VA's part. In the
alternative, the veteran appears to assert that VA failed to
exercise the degree of care that would be expected of a
reasonable health care provider as he evidently believes that
the doctor who performed his heart bypass surgery allowed
plaque to dislodge, or misused a staple gun, and caused the
bowel obstruction that necessitated his surgical resection.
In pertinent part, 38 U.S.C.A. § 1151 provides for
compensation for qualifying additional disability in the same
manner as if such additional disability were service-
connected. A qualifying additional disability is one in
which the disability was not the result of the veteran's
willful misconduct; and, the disability was caused by
hospital care, medical or surgical treatment, or examination
furnished the veteran; and, the proximate cause of the
disability is the result of carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of VA in furnishing the hospital care, medical or
surgical treatment, or examination or was the result of an
event not reasonably foreseeable. Id.
After the issuance of the statement of the case (SOC) in
September 2003, the VA regulations, governing the
adjudication of claims for benefits under 38 U.S.C.A.
§ 1151(a) were amended, effective September 2, 2004. See 69
Fed. Reg. 46,426 (Aug. 3, 2004) (now codified at 38 C.F.R.
§ 3.361 (2005)). The new regulation that is now in effect
implements the current provisions of 38 U.S.C.A. § 1151. The
regulations have no retroactive effect and, in any event,
merely implement existing law. See VAOPGCPREC 7-2003; 69
Fed. Reg. 25,179 (2004).
As the evidence of record does not contain sufficient medical
evidence to decide the claim, particularly in light of the
newly applicable regulations, further evidentiary development
is needed.
It is clear that in August 2002, the RO requested the
original hospital reports, including all inpatient notes,
operative reports and laboratory reports from the VAMC in
Gainesville regarding the veteran's treatment for the period
from September 1996 to February 1997. The RO received copies
of discharge summaries and surgical and laboratory reports,
but not inpatient notes. The Board believes that in
adjudicating this claim it would be helpful to have the
inpatient notes, including nursing records and doctors' notes
regarding the veteran's treatment for the period in question.
In his December 2000 claim and his October 2003 substantive
appeal, the veteran repeatedly said he was treated for his
infection at the VA Outpatient Clinic in Tallahassee,
Florida. Outpatient records dated through August 2000 from
the North Florida/South Georgia Veterans Health System are in
the claims file. It is unclear if there are additional
records regarding the veteran's treatment at the VA
outpatient clinic in Tallahassee and, if so, they should be
obtained. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v.
Derwinski, 2 Vet. App. 611 (1992).
In addition, the Board would like to supplement the record
with a specialized medical opinion (e.g., surgical,
gastroenterological, infectious disease) to address critical
questions in this case, including whether there was in fact
the dislodging of plaque, or a staple gun that dislodged into
his intestines, during the October 1996 coronary bypass
surgery and, if so, whether this caused the intestinal
ischemia and bowel resection or any of the other conditions
claimed by the veteran to have resulted from the October 1996
surgery. It would also be helpful to have an opinion
regarding the appropriateness of the VA care provided.
Finally, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess and Hartman v. Nicholson, 19 Vet. App. 473 (2006),
which held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) (West 2002 & Supp. 2005) and 38 C.F.R. § 3.159(b)
(2005) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the appellant was
provided with notice of what type of information and evidence
was needed to substantiate his claim for benefits pursuant to
§ 1151, but he was not provided with notice of the type of
evidence necessary to establish a disability rating or
effective date for the disability on appeal. As these
questions are involved in the present appeal, this case must
be remanded for proper notice under 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b), that informs the veteran that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded,
and also includes an explanation as to the type of evidence
that is needed to establish both a disability rating and an
effective date.
Accordingly, the case is REMANDED for the following action:
1. The RO should provide the veteran with
proper notice under 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b), that
informs him that a disability rating
and an effective date for the award of
benefits will be assigned if benefits
pursuant to § 1151 are awarded, and
also includes an explanation as to the
type of evidence that is needed to
establish both a disability rating and
an effective date, consistent with the
holding in Dingess and Hartman, supra.
2. The RO should obtain all nurses' and
doctors' notes and other inpatient
records for the veteran's
hospitalization at the VAMC in
Gainesville, Florida, from September
1996 to January 1997, other than the
discharge summaries and operative and
laboratory reports currently in the
claims file.
3. The RO should obtain all records
regarding the veteran's treatment at
the VA Outpatient Clinic in
Tallahassee, Florida, for the period
from September 1996 to the present, if
not already associated with the claims
file.
4. Thereafter, the RO should request that
appropriate VA medical specialist(s)
(e.g., cardiothoracic surgeon,
gastroenterologist, infectious disease
specialist) review the record for an
opinion as to whether the surgical
procedure performed on October 1, 1996
caused any additional disability
claimed by the veteran as intestinal
ischemia, status post bowel resection,
or residuals of staph infection. After
reviewing the treatment and hospital
records in the veteran's claims file,
the specialist(s) is(are) requested to
respond to the following questions:
a. Does the veteran have the
currently claimed disabilities:
intestinal ischemia, status post
bowel resection, and/or residuals
of a staph infection? Any
additional disability should be
identified.
i. If any additional disability
is identified, did the
October 1, 1996 surgical
treatment cause any of the
aforementioned (claimed)
additional disabilities?
ii. If so, the examiner(s) should
specify which condition(s)
was/were not a necessary or
expected consequence of the
October 1, 1996 coronary
artery bypass surgery.
b. If any such additional disability
is found, an opinion should be
provided as to whether it is at
least as likely as not (i.e., at
least a 50-50 degree of
probability) that: intestinal
ischemia, status post bowel
resection, and/or residuals of a
staph infection, was proximately
caused by carelessness,
negligence, lack of proper skill,
error in judgment, or similar
instance on the part of VA, in
furnishing care during the
veteran's October 1, 1996
procedure and subsequent
hospitalization, or whether such
an etiology is unlikely (i.e.,
less than a 50-50 degree of
probability).
NOTE: The term "at least as
likely as not" does not mean
merely within the realm of
medical possibility, but rather
that the weight of medical
evidence both for and against a
conclusion is so evenly divided
that it is as medically sound to
find in favor of causation as it
is to find against it
c. The medical specialist(s)is/are
requested to address whether the
type of treatment furnished for
the veteran's bypass surgery in
October 1996 was reasonable and
consistent with the nature and
extent of the disability shown at
that time, and to render an
opinion as to the veteran's
specific contentions that it was
as likely as not that medical
error caused by a misplaced staple
in his intestine, or dislodged
plaque, caused the intestinal
ischemia and bowel resection, or
whether such a result was unlikely
(i.e., less than a 50-50 degree of
probability).
A rationale should be provided
for all opinions expressed. The
veteran's medical records must
be provided to the examiner(s)
prior to review and the
examiner(s) is (are) requested
to indicate in the examaintioin
report(s) if the records were
reviewed.
5. Thereafter, the RO should readjudicate
this claim. If the benefits sought
remain denied, the veteran and his
representative should be provided with
a supplemental statement of the case
(SSOC). The SSOC should contain notice
of all relevant actions taken on the
claim, to include a summary of the
evidence and applicable law and
regulations, to include the new
38 C.F.R. § 3.361, and the holding in
Dingess and Hartman, supra, considered
pertinent to the issue currently on
appeal since the September 2003 SOC.
An appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The intimates no legal opinion, legal or factual, as
to the ultimate disposition of this case. The veteran need
take no action unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).